Supreme Court Justice Ruth Bader Ginsburg has died. The 87-year-old justice, who repeatedly expressed skepticism about the death penalty but never took the step of saying it was inherently unconstitutional, succumbed to pancreatic cancer on September 18, 2020. Her death immediately threw the future direction of the Court into turmoil.

Appointed by President Bill Clinton in 1993, Ginsburg had been an anchor of the four-justice moderate-to-liberal wing of the Court and had voted in the majority of every 5-4 Court decision this century that favored capital defendants and death-row prisoners. She and Justice Anthony Kennedy provided critical votes in the Court’s 6-3 decisions to bar use of the death penalty against people with intellectual disability (Atkins v. Virginia, 2002) and juveniles under age 18 (Roper v. Simmons, 2005), as well as its 5-4 decision in Kennedy v. Louisiana in 2008 that ruled the death penalty a disproportionate punishment for offenses in which no one is killed. Ginsburg also voted with the five-justice majority in two recent decisions — Hall v. Florida and Moore v. Texas — to prevent states from evading the prohibition against executing the intellectually disabled by adopting harsher non-scientific requirements for proving the presence of the disability.

Since DPIC began tracking stays of execution in 2015, no death sentenced prisoner has ever received a stay of execution from the Supreme Court without her vote.

In a 2017 appearance at Stanford University, Ginsburg famously stated: “If I were queen, there would be no death penalty.” Nonethless, while she joined Justice Stephen Breyer in urging the Court to reconsider the constitutionality of capital punishment, she never authored or joined an opinion declaring that the death penalty itself constituted cruel and unusual punishment. Ginsburg explained why in a 2014 interview with the National Law Journal: “I’ve always made the distinction that if I were in the legislature, there’d be no death penalty. … I had to make the decision was I going to be like Brennan and Marshall who took themselves out of the loop [by saying the death penalty was always unconstitutional]. There have been some good death penalty decisions. If I took myself out, I couldn’t be any kind of contributor to those.”

The practical impact of Justice Ginsburg’s death will be felt immediately in capital cases. In recent years, stays of execution could not issue without the vote of at least one of the conservative members of the Court, and the justices regularly rejected constitutional challenges to execution procedures or denied stays of executions by 5-4 votes. Because tie votes leave undisturbed the decisions of a lower court, the votes of at least two conservative justices are needed for a death-row prisoner to reach the 5-3 threshold now required for the Court to stay an execution.

In 2016, Senate Majority Leader Mitch McConnell blocked a Senate vote on President Barack Obama’s nomination of moderate federal circuit court judge Merrick Garland to fill the Supreme Court vacancy caused by the death of conservative Justice Antonin Scalia in February of that year. McConnell said at that time that the Senate should not fill court vacancies in a presidential election year, leaving it to the voters to decide who should fill the vacancy. That gambit led to the appointment of conservative Neil Gorsuch as Scalia’s replacement.

Despite his prior assertion, McConnell has said that he intends to push for a speedy election-year confirmation of Ginsburg’s replacement.

If President Trump succeeds in appointing a replacement for Ginsburg in the six weeks before the 2020 presidential election or in the subsequent lame duck session of Congress, the Court is expected to take a hard right turn that could significantly diminish federal enforcement of constitutional rights in capital cases, potentially for decades.


Nina Totenberg, Justice Ruth Bader Ginsburg, Champion Of Gender Equality, Dies At 87, NPR, September 18, 2020; Linda Greenhouse, Ruth Bader Ginsburg, Supreme Court’s Feminist Icon, Is Dead at 87, New York Times, September 18, 2020; John Wagner and Derek Hawkins, Fierce polit­i­cal bat­tle heats up over whether to replace Ginsburg as trib­utes pour in, Washington Post, September 19, 2020; Aaron Blake, The GOP sen­a­tors who will decide on Ginsburg’s vacan­cy, Washington Post, September 182020.